Senate Moves Toward Major Shift in Military Law After Years of Failure to Combat Sexual Assault

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Sen. Kirsten Gillibrand
Sen. Kirsten Gillibrand, D-N.Y., center, walks on Capitol Hill on the fifth day of the second impeachment trial of former President Donald Trump, Saturday, Feb. 13, 2021 at the Capitol in Washington. (Stefani Reynolds/Pool via AP)

After decades of failure to effectively combat sexual assault in the military, a growing bipartisan group of lawmakers is confident it can pass a sweeping new law that would overhaul prosecution efforts, taking commanders out of the process.

"Sexual assault in the military is an epidemic. … It's clear that this system is not working. The culture on [military] bases is not one of justice, but retaliation," Sen. Kirsten Gillibrand, D-N.Y., said Thursday at a press conference on Capitol Hill.

A bill introduced by Gillibrand would remove military commanders from the role of prosecuting sexual assault crimes, something she has long sought. The argument for the change is that commanders rarely have any legal background and have inherent biases when tasked with investigating and potentially prosecuting suspects who are their colleagues.

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The measure would still leave misdemeanors and military-specific crimes in the hands of commanders.

Gillibrand has the backing of a wide bipartisan coalition, including Sens. Joni Ernst, R-Iowa, and Ted Cruz, R-Texas, who could be key in passing the measure into law after years of stalled efforts. Lawmakers who previously were against the idea of taking commanders out of prosecution decisions have become increasingly fed up with the military's failure to curb the crisis and now believe Congress must step in.

"I have two daughters who are 13 and 10," Cruz said. "I don't know if they [will] choose to serve, but I damn sure want them protected from sexual assault if they do choose to serve. This is not taking the decision of prosecution out of the military. This is responding to the problem we've heard testimony on year after year … which is a commanding officer with divided loyalties, where the assailant and the victim -- the commanding officer is potentially conflicted in those loyalties."

Despite the military touting a "zero tolerance policy," sexual crimes remain rampant in the force and rarely end in conviction. A Defense Department study in 2020 found about 4% of sexual assault cases in the military end in conviction, mostly due to a lack of evidence.

The Defense Department found that there were 7,825 sexual assaults involving a service member in fiscal 2019, a 3% rise from the previous year. However, the number of unreported cases could be much greater.

"Every commander that has come before [Congress] has said they got this; there's no evidence they have this," Gillibrand said. "They're done so poorly on every objective measure."

The bill's introduction comes a week after a Pentagon panel recommended that decisions to prosecute troops for sex crimes be made by independent authorities, not the chain of command.

-- Steve Beynon can be reached at Steve.Beynon@military.com. Follow him on Twitter @StevenBeynon.

Related: End Commanders' Power to Block Military Sex Cases, Pentagon Panel Says

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